About Me

Known principally for his weekly political columns and his commentaries on radio and television, Chris Trotter has spent most of his adult life either engaging in or writing about politics. He was the founding editor of The New Zealand Political Review (1992-2005) and in 2007 authored No Left Turn, a political history of New Zealand. Living in Auckland with his wife and daughter, Chris describes himself as an “Old New Zealander” – i.e. someone who remembers what the country was like before Rogernomics. He has created this blog as an archive for his published work and an outlet for his more elegiac musings. It takes its name from Bowalley Road, which runs past the North Otago farm where he spent the first nine years of his life. Enjoy.

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Followers

Tuesday, 8 January 2013

Spooks In The Spotlight

Permanent Interests: Elected politicians come and go; political parties move backwards and forwards between the Treasury and the Opposition benches; the news media reports, critiques and, very occasionally, exposes the actions of the powerful; but the Permanent Government endures - and its servants are almost never held accountable for their actions.

WILL THE GOVERNMENT Communications Security Bureau (GCSB)
end up in the dock? Is it really possible that senior GCSB officers will be
required to give evidence in the Kim Dotcom Case? The answer is: “probably
not.” The maintenance of state security is arguably the most important function
a government has. It is, therefore, extremely unlikely that anyone will
sanction publicly exposing the blurred lines of authority, legality and
accountability so basic to effective state security.

Though it is nowhere clearly spelt out, it is nevertheless
firmly believed by those who inhabit them that the vital institutions of a
fully-functional modern state: the professional civil service; the Armed Forces
and Police; the Judiciary; senior local government officials; constitute the
“Permanent Government” of the Realm.

Elected politicians come and go; political parties move
backwards and forwards between the Treasury and the Opposition benches; the
news media reports, critiques and, very occasionally, exposes the actions of
the powerful; but the Permanent Government endures.
Over the centuries, it has been forced to concede a number of important roles
to the people’s elected representatives, but obstructing the duties of the Permanent
Government isn’t one of them.

The Kim Dotcom Case is unusual because the conduct of the
Permanent Government is being disrupted by one of its own – the Judiciary.
While there are many examples of politicians frustrated by the actions of a
security apparatus only notionally under their control, it is rare to see the
“spooks” brought to heel by lawyers and judges. So rare, in fact, that it
raises the possibility that Kim Dotcom and his legal team have unleashed some
kind of rogue judicial energy. It has already seriously embarrassed the Prime
Minister and his National Party Government, and now threatens to compromise the
operational reliability of the GCSB.

This is no small matter. New Zealand’s signals intelligence
operation is inextricably bound up with those of the four other Anglo-Saxon
powers: the USA, the UK, Canada and Australia. It is barely conceivable that
the global security reach of these “Five Eyes” might be compromised by some
arcane dispute over the intellectual property rights of the American film and
music industries.

Even more unlikely is the prospect that the FBI – a
principal player in the Dotcom Saga – will meekly submit to the orders of a New
Zealand High Court Judge (or even our Supreme Court). The FBI may include the
entire planet in its jurisdiction, and consider every Western police force to
be an extension of the already very long arm of American law enforcement, but,
when it comes to external scrutiny of its own investigations, the FBI answers
solely to the Attorney-General of the United States.

The most likely outcome of the Dotcom Saga, therefore,is that, somehow, the case will be made to
disappear. Somewhere – both here in New Zealand and (hopefully) in the United
States – a collection of wise old heads will be reviewing the succession of
public relations, political and security disasters which followed the
spectacular arrest of Mr Dotcom in January 2012 and asking how many more
disasters it’s going to take before someone in authority locates the “Off”
switch.

The whole extraordinary story calls to mind a knitted jersey
with a loose thread. The garment which once comfortably covered the naked power
of the Permanent Government has, thanks to Mr Dotcom’s legal team, unravelled
to the point where all manner of formerly hidden things are now on clear
display.

Before the arrest of Mr Dotcom how many New Zealanders were
aware that the GCSB regularly co-operated with the New Zealand Police by
intercepting the cell-phone and e-mail messages of their fellow citizens?

Who among us was aware that it was within the power of our
Prime Minister to sign a document suppressing any and all references to the
GCSB in a New Zealand court of law? When was that extraordinarily undemocratic
and dangerous power conferred upon a politician?

Did anyone suspect that the FBI in Washington had only to
pick up the phone to the New Zealand Commissioner of Police to set in motion a
full-scale armed assault on the property of a man accused of nothing more
sinister than copyright violation?

And, how many Americans would have believed that a handful
of irritated movie moguls and record producers could activate the
enormously complex and expensive machinery of the National Security Agency, the
Department of Homeland Security, the CIA and the FBI for no better purpose than
to scratch a longstanding commercial itch?

Is it really all that likely that this litany of
embarrassing revelations is going to be lengthened by the FBI handing over its
evidence to Mr Dotcom’s lawyers? Or that one of this country’s most
distinguished Queen’s Counsels is going to be unleashed on our top spooks?

I don’t think so.

This essay was
originally published in The Press of Tuesday,
8 January 2013.

4 comments:

Anonymous
said...

It might be too late. Their problem is that they picked on the wrong guy this time, and they don't seem to have any leverage against him. I reckon that there's a reasonable chance that Dotcom will continue to gib the authorities just for kicks. He was reputedly the world's best CODMW3 player, and people like that don't give up when they're winning.

V. interesting speculation here Chris. Hey, when a trio of sky pilots can temporarily pull down Echelon’s skirts with a pre industrial tool (scythe) anything may be possible in the land of the ‘wrong white crowd’.

You are probably correct that the judiciary will not bother the spooks for much longer on this one. Pie, Penthouse and lost brief case bungles have no doubt been well consigned to history. Or have they?

If there is a move to write a text for NZ schools on Civics you might want to have an expanded form of your blog post put in a a chapter, perhaps the title would be the most fun to write, how would you word it, "stable democracy is knowing where to find the off switch".

You're too pessimistic Chris. Un;ess you have concrete evidence that the NZ judiciary will roll over, there is no reason to believe that the NZ police, GCSB, and their FBI chums won't have to answer a few hard questions in court.

Of course, I expect the US officials will simply refuse (or more likely, refuse to turn up), but then they can be held in contempt of court (not to mention the public!).

That may not mean much in practical terms, but does set the stage for a budding NZ MP to introduce a Member's Bil to solve the then proven problem of foreign spy & police agencies acting above NZ law. Say impose tariffs on US imports... hehe ;)